SZFVX v Minister for Immigration and Citizenship
[2007] FCA 1763
•23 November 2007
FEDERAL COURT OF AUSTRALIA
SZFVX v Minister for Immigration and Citizenship
[2007] FCA 1763
SZFVX v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNALNSD 1393 OF 2007
LINDGREN J
23 NOVEMBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1393 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFVX
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
23 NOVEMBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1393 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFVX
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE:
23 NOVEMBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The appellant appeals from a judgment of the Federal Magistrates Court of Australia. That Court dismissed his application for constitutional writs in respect of a decision of the second respondent (the Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (respectively, the Delegate and the Minister) to refuse to grant the appellant a Protection (Class XA) Visa.
The Tribunal has filed an appearance submitting to any order, other than as to costs, that the Court might make.
BACKGROUND
The appellant is a citizen of Bangladesh. He arrived in Australia on 27 April 2004 and applied to the then Department of Immigration and Multicultural and Indigenous Affairs for the protection visa on 10 May 2004.
The Delegate refused to grant the visa on 27 July 2004. On 23 August 2004, the appellant applied to the Tribunal for review of the Delegate’s decision. The Tribunal affirmed the decision on 10 February 2005. However, by order of the Federal Magistrates Court made on 23 August 2006, the Tribunal’s decision was quashed and the matter was remitted to the Tribunal to be determined according to law (SZFVX v Minister for Immigration [2006] FMCA 1204).
On 22 September 2006, the Tribunal wrote a letter to the appellant pursuant to s 424A of the Migration Act 1958 (Cth). That letter enclosed a lengthy attachment which may be described as a draft of the Tribunal’s reasons for decision. Indeed, the latter part of the document was headed “possible findings and reasons”.
On 18 October 2006, the appellant replied to the s 424A letter.
On 7 November 2006, the Tribunal, differently constituted, conducted a hearing of the appellant’s application at which the appellant appeared, aided by an interpreter, and was represented by Mr Sirajul Haque, of AAT Legal, NSW Legal Exchange. The appellant gave evidence and made submissions.
On 28 November 2006, the Tribunal handed down its decision, which was again adverse to the appellant. On 22 December 2006, the appellant filed an application in the Federal Magistrates Court, and on 23 May 2007 he filed in that Court an amended application on which his application for judicial review proceeded.
On 27 June 2007, the Federal Magistrates Court dismissed the application: SZFVX v Minister for Immigration & Anor [2007] FMCA 978.
On 17 July 2007, the appellant filed his notice of appeal in this Court.
APPELLANT’S CLAIMS
In general terms, the appellant claims to fear persecution by reason of his adherence to the Ahmadi faith.
The appellant said that he feared that, as an Ahmadi, he would be assumed to be a member of the “Ahmadiyya Muslim Jamaat” (AMJ), an organisation that pursued the interests of Ahmadis, and would suffer persecution as a result. The appellant claimed that he had been targeted by Muslim fundamentalists and threatened and attacked by the police and the Islamic Party that was represented in the Government.
The appellant complained that he was attacked by Sunni Muslims during an Ahmadi procession in Dhaka on 23 November 2003. He also claimed that his shop in Chittagong had been ransacked. He did not know who had done this but thought it might have been people opposed to Ahmadis.
Another claim made by the appellant was that he had been subjected to false criminal charges in Bangladesh.
The appellant said he feared that Muslim fundamentalists would kill him if he returned to Bangladesh.
THE TRIBUNAL’S FINDINGS AND REASONS
The Tribunal did not accept that the appellant was a witness of truth, and gave the following reasons in support.
First, the Tribunal found the appellant unable to provide sufficient details of the Ahmadi mosques in and around the areas where he resided in Bangladesh. It recorded that the appellant had said that he “forgot many things”, that he “could not remember the location”, and that he could say the name of the mosque but not its location. The Tribunal declared itself satisfied that at the very least the appellant had sought to embellish his association with, activities for, or adherence to, the Ahmadi faith.
Secondly, the appellant had informed the Tribunal as previously constituted that he had requested a non-Ahmadi friend in Bangladesh to obtain documentation from the AMJ in support of his case. The Tribunal did not accept as plausible that the appellant would have contacts and supporters in the Ahmadi community and yet rely on the assistance of a non-Ahmadi person to secure the relevant evidence, if he was, as claimed, an Ahmadi activist. The Tribunal declared itself satisfied that the appellant’s claim to be an Ahmadi activist was false and was made for the sole purpose of enhancing his claim to invoke refugee protection obligations in Australia.
The appellant produced to the Tribunal on the day of the hearing (7 November 2006) a letter purporting to have been signed on 17 September 2006 by the “Mutawalli (In-Charge)” of a mosque in Dhaka, and a written translation dated 25 September 2006 from Bangla into English. The letter stated that the appellant was known to the signatory; that he used to perform “all ritual doings of our sect” during his stay in the area in question; that he was one of the regular worshippers at the mosque; and that he had not been involved in any activities subversive of the state or of discipline, to the best of the signatory’s knowledge.
The Tribunal pointed that if the content of the letter was true, the Tribunal would have expected the appellant to have been able to provide more detail about the mosque.
Thirdly, the Tribunal noted that the appellant had failed to provide any documentary supporting evidence from members of the Australian Ahmadi community. The Tribunal member noted that although he does not ordinarily expect applicants to provide supportive documentary evidence, the Tribunal as previously constituted had mentioned in the course of the hearing the prevalence of document fraud in Bangladesh and that in the appellant’s response to the Tribunal’s s 424A letter, the appellant had said that he would “supply documentary information for [sic] the Ahmadi community”. The Tribunal therefore concluded that the appellant’s apparent inability to obtain documentary support from the Ahmadi community in Australia constituted a further reason to reject his claim that he adhered to the Ahmadi faith.
Fourthly, the Tribunal noted that the appellant had failed to obtain any letter from the Mutwalli prior to the earlier Tribunal hearing.
Finally, in relation to newspaper articles discussing mistreatment of Ahmadis in Bangladesh provided to the Tribunal by the appellant, the Tribunal noted that it did not follow that every Ahmadi in Bangladesh was subject to persecution.
DECISION OF THE FEDERAL MAGISTRATES COURT
His Honour the learned Federal Magistrate gave detailed reasons ([2007] FMCA 978 at [11]–[46]) for dismissing the application. His Honour concluded that the appellant had not established jurisdictional error on the part of the Tribunal.
THE PRESENT APPEAL
The appellant appeared, unrepresented, on the hearing of the appeal. The notice of appeal sets out the following grounds:
1.His Honour erred by finding that the Refugee Review Tribunal (“RRT”) was entitled to determine whether the Appellant feared persecution on the grounds of religion or particular social group by reference only to whether the applicant was an adherent (that is a paisa with a given level of knowledge and commitment) to the Ahmadi faith.
2.His Honour erred by failing to have regard to the possibility that the appellant could be imputed with religion and or membership of a particular social group defined by that religious eve through [sic] the extent to which the appellant was a true adherent of that religion (that is a person with a given level of knowledge and commitment) was low or unimpressive.
3.His Honour erred at paragraph 42 by adopting an approval requiring the formality of pleading to the mature [sic – nature] of the connection ground being raised by the appellant.
The appellant provided a written submission dated and filed on 13 November 2007.
The first and second grounds of appeal appear to relate to a matter addressed by the Federal Magistrate at [42] and [44] of his Reasons for Decision. The appellant’s claim was that he had a well-founded fear of persecution by reason of his adherence to the Ahmadi faith. In his application for the protection visa he stated, in answer to the question “Why did you leave that country?”:
I am an AHAMADIA by faith religion. From my boyhood I practice this religion. As an AHAMADIA I believe I am a member of a particular social group.
I was in difficulties to practice my religion last couple of years, and was face trouble to practice religion and also I face discrimination in my social life in my previous country of residence. It is worldwide information that Ahamadias are declared non-Muslim. I was targeted by the fundamentalist Muslims last couple of months. I was threatened and attacked by the police and Islamic party who belongs to present Government.
I have no security of my life. Muslim fundamentalist will kill me. My name is in the dead list of Jamat-E-Islami Party.
I will provide details letter [sic] – later?].It does not matter whether the appellant’s claim is classified as one of a well-founded fear of persecution on the ground of religion, political opinion or membership of a particular social group. At the heart of his claim was his being, and being known to be, an Ahmadi.
In respect of this claim, the Tribunal did not accept the appellant to be a credible witness. It did not accept that he was a practising Ahmadi at all. Credibility is clearly a matter within the exclusive province of the Tribunal.
The third ground stated in the notice of appeal may amount to a complaint that the appellant was constrained by the way in which he ran his case before the Tribunal. In paragraph [42] of his Honour’s reasons, the Federal Magistrate stated:
... the Tribunal’s consideration of the applicant’s adherence to the Ahmadi sect can be seen to deal not only with the applicant’s claim to fear persecution by reason of his religion, but also by reason of his membership of a particular social group which is defined by its religious beliefs and observances. What the applicant has sought to do in these proceedings is to define the particular social group more widely than he did in his protection visa application or in his evidence and arguments to the Tribunal. A consideration of the applicant’s evidence and arguments at the Tribunal, as recorded in its decision record, does not see the applicant suggesting that the social group of which he claims membership can be defined by name, culture, society or descent.
The distinction to which the Federal Magistrate referred was one apparently attempted to be drawn by the appellant between “Ahmadis in Bangladesh” and “Ahmadi believers in Bangladesh” – see [41] of his Honour’ reasons. The Tribunal addressed squarely the notion of “Ahmadis in Bangladesh”, stating:
... at the present Tribunal hearing, I put to the applicant and his adviser that while I understood that Ahmadis in Bangladesh may be subject to discrimination and on occasion, persecution, this would not necessarily satisfy me that every Ahmadi in Bangladesh had a well-founded fear for that reason. ... [T]his was conceded by the applicant’s migration agent. So even if the present applicant was an Ahmadi adherent as claimed, whatever the degree of his convictions to that faith may be, given I was not satisfied that the applicant was a witness of truth, I am not satisfied the applicant’s alleged religious (or other) convictions invoke refuge protection obligations in Australia.
The written submissions provided by the appellant on the present appeal were not structured so as to relate to the three grounds of appeal and went beyond those grounds. They frequently use the expressions “breach of procedural fairness”, “jurisdictional error”, “error of law” and “the rule of natural justice” in generalised and undiscerning ways that are not related to any particular aspect of either the Tribunal’s reasons or those of the Federal Magistrates Court. The written submissions conclude as follows:
13.That the fear persecution against me has the both elements of subjective and objective fear, but the Tribunal failed to identify those elements.
Finally:
a.The Tribunal failed to take relevant consideration into account in exercising its power to determine me as a refugee.
b.That the decision involved a jurisdictional error involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal.
c.The Tribunal decision was unjust and was made without taking into account the full gravity of the circumstances and consequences of my review application.
d.The decision by the Tribunal is not justifiable by the evidence used in the decision. The used documents have indicated clear violation of human rights, which are amounts to persecution. The Tribunal ignored its own information in deciding the case.
e.The Tribunal failed to identify the limit of harm. I was attacked ruthlessly by the elements of radical Jamati Islam Bangladesh activists and its terrorist, but the Tribunal did not give any weigh to consider it.
f.The decision was an improper exercise of the power confirmed by this Act or the regulation and I was deprived to attain natural justice for the RRT member.
g.Thereof I (appellant) pray to this court to accept my application and make an order to the Respondent to rehear the Review Application with appointing a new Tribunal Member.
I do not think it necessary to address such generalised references, except by saying that the claims are not made out.
In some respects, the appellant’s submissions invite a review on the merits which is not open to either the Federal Magistrates Court or this Court.
In my view, the Federal Magistrate dealt with the substance of the appellant’s complaints about the Tribunal’s reasons, and did so thoroughly and without error.
CONCLUSION
The appellant has not demonstrated jurisdictional error on the part of the Tribunal or any error on the part of the learned Federal Magistrate. The appeal should be dismissed with costs.
[Following the conclusion of the hearing, the appellant informed my Associate that there was something further he wanted to say. He was told that he would have to put any further submission in writing. No further submission has been received.]
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 23 November 2007
The Appellant appeared in person. Counsel for the First Respondent: Ms L Clegg Solicitors for the First Respondent: Sparke Helmore The Second Respondent did not appear. Date of Hearing: 14 November 2007 Date of Judgment: 23 November 2007
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